K Midterm

What is bilateral K?

Promise for Promise

How to tell if acknowledgment form is definite?

Is there a commitment to go forward on the same dickered terms as the offer form?

How to tell if an acknowledgment form is seasonable?

If it was returned in a reasonable time

What is unilateral K?

Promise for performance

If dickered terms don't match on a form what happens?

Its a counteroffer

What is mutual assent?

Offer followed by acceptance

What is an offer?

Communication that invites assent and implies the assent will conclude the deal

What is acceptance?

The agreement of the offeree to the terms of the offer, resulting in a contract.

What does an option K do?

Prevent the revocation of an offer

Elements of a firm offer under UCC § 2-205?

An offer by a merchant to buy or sell goods in a signed writing which gives assurance that the offer will be held open for a period of time as specified by the parties or for a reasonable time but never to exceed 3 months. If OE provides form, firm offer clause must be separately signed by OR.

What is a merchant?

One who deals in goods of the kind

What are the 3 bases for contractual obligation?

Traditional K, reliance, restitution

Mirror Image Rule

terms of acceptance must exactly match the terms of the offer for a contract to be formed.

Mailbox Rule

Acceptance may be effective if sent via mail if it is properly stamped and addressed and the offeror invites acceptance that way.

Battle of the Forms

A situation in which two parties exchange documents with differing terms, leading to disputes over the terms of the contract.

What are the steps of UCC § 2-207?

Offer

Acknowledgment form definite, seasonable, and expressly conditional?

Yes expressly conditional - counteroffer - go to 2-207 (3)

Is there express assent to counteroffer?

If no - is there conduct that implies existence of K?

If yes - K is formed with agreed terms. All other terms are replaced with gap fillers

If acknowledgment form is not expressly conditional - go to 2-207 (2)

Is there express assent to additional terms?

If yes, terms added. If no, is the K between merchants?

If yes - terms are added unless terms materially alter the K, terms were objected to, or the offer expressly limits the acceptance to terms of the offer.

If not between merchants - terms not added.

Counteroffer

A response to an offer that changes the terms of the original offer, effectively rejecting it.

Consideration

Something of value exchanged between parties in a contract, which is necessary for a contract to be enforceable.

Are purchase orders offers?

Yes

When are ads offers?

Ads are offers if there is language of commitment or invitation to take action without further communications

Is a deliberately misleading ad an offer?

Yes

What must be identifiable for an offer to exist?

Offeree

What factors do the courts consider in determining if an offer exists?

Does it say offer?

Is there a promise?

Are the terms complete?

Is there power to close the deal?

Would a reasonable person believe an offer is intended?

What is the general rule for ads?

Ads are not offers

What is the definition of preliminary negotiation?

A communication where the person knows or has reason to know that further information is required before assenting

Are preliminary negotiations offers?

No.

What is the general rule for communications to multiple people?

They are not offers.

What are the elements of a traditional option K?

A promise to hold an offer open for a specific amount of time

KSN for the promise not to revoke.

What are the elements of R§87 (2)

An offer

Foreseeable reliance

Substantial reliance

Avoid injustice

What does R§87 (2) get you?

An option K.

What are the 4 option Ks?

Traditional option K

R§87(2)

R§45

UCC 2-205

What are the sub-elements of substantial reliance under R§87(2)

Action or forebearance by OE

Substantial expenses or committments

Offer includes reliance (but-for test)

Reasonable reliance

What is a business practice merchant?

one who holds himself as having the knowledge or skill peculiar to the practice of goods involved in the transaction because of his occupation

What is a merchant by attribution?

One who has the knowledge or skill attributed by his employment; has to be acting on behalf of his employment at the time.

What are goods as defined by UCC?

All things moveable at the time of contracting

Are unborn animals considered goods by UCC?

Yes

Are growing crops considered goods by UCC?

Yes

How does UCC define “signed”

Any symbol executed or adopted with intent to accept a writing

How do you tell the predominate purpose of a K?

Language of K

Nature of the business supplier

Intrinsic worth of the materials

What are the elements of R§45?

Offer for a unilateral K, beginning of performance

When can an offer be revoked?

An offer is freely revocable at any time prior to acceptance unless there is an option K

What are the 2 ways of revocation

Direct revocation

Indirect revocation

What is direct revocation?

Direct communication of revocation

What is indirect revocation?

When the OR takes actions inconsistent with the intention to enter into the K and the OE gains that knowledge through reliable information

What is acceptance

A manifestation of assent to the terms made in a manner invited by the OR

What are the methods of terminating power of acceptance?

Death

Lapse of time

Rejection

Counteroffer

Revocation

How do you accept a unilateral K?

Complete performance

When does Common Law battle of the forms apply?

When a K is mostly for services and there are forms with differing terms

When does UCC battle of the forms apply?

When the K is mostly for goods and there are forms with differing terms

What is the test for material alteration of an offer?

Surprise or hardship

How do you show hardship?

A term imposes an unbargained for burden

How do you show surprise?

The term shouldn’t be surprising because it is widely used in the industry

What is the definition of between merchants under UCC?

Any transaction where both parties are chargeable with the knowledge or skill of merchants

Can express assent be implied by silence, failure to react, or lack of objection?

No.

Which form gets taken through 2-207?

Acknowledgment form